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Sharma v Hardwood Sales & Marketing (Fiji) Ltd [2014] FJHC 573; HBC137.2008 (6 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 137 of 2008

BETWEEN:

ATISH CHAND SHARMA of Lot 11 JP Maharaj Road, Nakasi, Nasinu, Unemployed
Plaintiff

AND:

HARDWOOD SALES & MARKETING (FIJI) LIMITED, a limited company having its registered office at Lot 19 Regan Street, Nausori
Defendant

Appearance: Mr D Singh for the Plaintiff
The Defendant unrepresented

Date of Judgment: 6 August 2014

JUDGMENT

1. Writ of Summons and Statement of Claim was filed by the Plaintiff on 30 April 2008 and sought the following orders:

"(a) General Damages for pain and suffering and loss of amenities and enjoyment of life;

(b) Past economic loss and/or special damages;

(c) Future economic loss;

(d) Interest on his award at such rate and for such rate and such periods as this Honorable Court deem fit;

(e) Costs of this action."

Alternatively, the Plaintiff Compensation under Workmen's Compensation Act against the Defendant.

2. It was stated by the Plaintiff in his statement of claim.

2.1 The Plaintiff was employed by the Defendant as a joiner boy at their job site at Lot 25, Willow Street, Nakasi.

2.2 The Plaintiff had stated it was the duty of the Defendant to take all reasonable measures to ensure that the place where he carried out his work was safe and the Defendant should provide and maintain a safe and proper work place.

2.3 On 31 August 2007, in the course of the Plaintiff's employment the plaintiff was using an Electric Bench saw to rip a piece of batten length wise and the said batten shot back hitting his left thumb later which was amputated and thereby causing him injury, loss and damage. The injury was caused by breach of statutory duty and/or by the negligence of defendant and/or his servants and/or agents.

2.4 The particulars of the negligence was stated in paragraphs 5 (1 to 8) of the statement of claim.

2.5 The Plaintiff also had stated the particulars of injuries that is, traumatic amputation on his left thumb and heavy bleeding and his permanent disability was assessed at 35%.

2.6 The special damages were particularized in the Statement of Claim.

2.7 The Plaintiff stated that loss and damages are continuing and he craved leave to file an up to date schedule of damages prior to the hearing of this action.

3. The Defendant's Statement of Defence paragraph 1 – 8 of the statement were denied inter alia the Defendant had denied the employment accident injuries etc.

4. Thereafter, the Defendant had filed summons before the Master on 7/12/2008 seeking an order that the action be struck out on the grounds that it is frivolous, vexation and an abuse of process of the court.

5. The said summons by the Defendant was dismissed by the Learned Master S Udith on 24 July 2008 with costs of $150.00.

6. The Defendant thereafter filed summons for directions on 5/12/2008 and same was dismissed by the Learned Master and awarded $200.00 as costs and ordered that matter to take its normal cause.

7. The Notice of Motion by the Plaintiff to join Mr Mohammed Daud Khan was filed on 16th September 2011was dismissed by Master Amaratunga by his ruling dated 13 June 2012. The basis of dismissing the application was the application was not covered in Section 16 of the Limitation Act.

8. On 19 of September 2012, the Plaintiff filed summons for assessment of quantum of damages supported by the Affidavit dated 19/9/2012 sworn by Atish Chand Sharma. Affidavit of Service was filed on 9 October 2012 sworn by Muni Prasad Bailiff to the effect that summons was served on the Defendant Company on 28 September 2012.

9. The matter was mentioned on 6 November 2012 and was taken up for hearing on 10 December 2013.

10. The Defendant was not present and unrepresented on 6 November 2013 and 10 December 2013 when the matter was taken up for hearing.

11. At the hearing, the Plaintiff Atish Chand gave evidence and stated:

11.1 He was working for Hardwood Sales and Marketing (Fiji) Ltd owned by Dhaud Khan. The witness was working as a joiner. The Defendant Company was paying salary in cash. He was getting $120 per week and his FNPF was not paid by the employer. He was working for 3 to 4 months.

11.2 His job was to cut timber and the injury occurred when he was cutting the timber by the machine. The witness was pushing the timber in to the machine and it got connected to the blade. There was no guard fixed in the machine. The timber log kicked back and he didn't had the time to move away, from the blade and couldn't avoid the sustaining of the injury to his left thumb. Mansoor Ali who was the supervisor instructed him to cut the timber when the injury was not in the work place and he was away at the mosque. The witness had told about the injury and when Mansoor came after about 5 minutes he took the witness to the Bhanabhai Medical Centre and they referred them to CWM Hospital. Finger was hanging from the skin and after removing the left thumb at CWM it was bandaged and was in the hospital for 5 days. He was given drips for 5 days and suffered pain and still suffers. Continuously, for 5 to 6 days the witness had to go for dressing and after that gone to Nakasi Health Centre for 1 to 2 months. Before the thumb was taken out no injection were given and after that 3 injections were given.

11.3 The Plaintiff tendered Medical Report dated 27/9/2007 issued by the CWM hospital marked as Exhibit P1 and the Notice titled Notice by Employer of Accident under Workmen's Compensation Act CAP 77 (CAP 94) signed by the Dr Basmarat Munsh dated 19/02/2008 marked as Exhibit P2. (It is noted this report is unsigned by the employer).

11.4 The witness stated he went for follow up clinics 3 to 4 months and still he suffers the pain. After the injury 3 to 4 weeks he was paid $50.00 per week and it was stopped. After 3 years of the injury he got the employment. Answering to the court, witness stated presently he is engaged in an employment with Water Authority as a labourer verifying the meters and upgrading the meters. In 2011 he joined the Water Authority.

12. The Defendant did not participate at the hearing. For the purpose of Judgment, I am considering responses filed by the Defendant in the proceedings of this matter.

12.1 The Defendant had filed Statement of Defence on 16/5/2008 and denied the Plaintiff was employed by the Defendant Company and made total denial of all the averments in the Statement of Claim and stated that the Defendant was named wrongly and mistakenly.

12.2 The summons was filed by the Defendant pursuant to Order 18 Rule 18 of the High Court Rules on 7 July 2008 to struck out the action on the grounds that the Plaintiff's action is frivolous vexatious and abuse of the process of the court. When the summons were taken up for hearing the Defendant had not appeared and the Learned Master had dismissed the summons with costs of $150.00.

12.3 Subsequently, an application was made by the Plaintiff to join Mohammed Daud Khan as a Defendant by Notice of Motion filed on 6 September 2011. The Motion was struck out by the Learned Master on 13 June 2012.

12.4 This court had considered Affidavits filed by the parties, the Statement of Defence, the amended Statement of Defence, and specifically the evidence given by the Plaintiff and the Affidavit filed by Sathu Kumar which corroborates the evidence given by the Plaintiff in this matter. The Defendant failed to participate at the trial and no substantive evidence is produced before this court to dispute the claim of the Plaintiff. I believe the evidence of the Plaintiff and conclude that he had proven his claim on balance of probabilities; and the Defendant failed to provide adequate safety measures for the safety of the Plaintiff as detailed in the Statement of Claim in the paragraph 5 (1 to 8) and find that the Defendant was liable for negligence. Accordingly, I hold in favour of the Plaintiff. Having established the liability now I deal with the quantum of damages claimed by the Plaintiff.

13. Assessment of Damages
13.1 General Damages
The Medical Report dated 27/9/2007 marked P1 states the Plaintiff's left thumb was amputated. The document marked P2 states the permanent disability is 35%. When awarding general damages, the Plaintiff is entitled to compensate for his pain and suffering attributable to the injury. There is no doubt the Plaintiff would suffer pain after the injury and the Plaintiff stated in his evidence he still suffers pain. In addition, to the pain and suffering, this court should consider loss of amenities in life of the Plaintiff.

I have taken into consideration the cases decided on similar nature Nazrul v. Eastern Apparels Company Limited HCCA No. 209 of 1997, Alwin Nilesh Chand v. Rajendra Prasad Limited HCCA No. 384 of 2003. I also considered the recent decision in case of Chand v. Master Builders and Joinery Ltd Civil Action No. 52 of 2009 (unreported decided on 20 January 2012) where left ring finger and left little finger were amputated. The award of $5,000.00 was made considering the measure of impairment at 8%. I also considered the decision in case of Tomasi Vusovuso v. Government Printer HBC 44 of 2006 (unreported decided on 6 July 2008). In this case measurement of permanent impairment was 16% and award was $10,000.00. Accordingly considering the measurement of impairment at 35%, I award $20,000.00 as General Damages for pain, suffering and loss of amenities of life of the Plaintiff.

13.2 Loss of Past and Future Earnings
The Plaintiff stated in his evidence he did not have any income for 3 years after the injury. Injury sustained on 31 August 2007 and he was paid $50.00 per week for 3 to 4 weeks after the injury that is up to 30 September 2007. As such the loss of income commence from 1 October 2007 for 3 years since the Plaintiff was without employment for 3 years. His evidence was he was earning $120 per week and loss of income for 3 years:

➢ 3 years

365 days x 3 = 1065 days = 152 weeks x $120 per week

7

= $18,240.00

I will not consider any future earnings since the Plaintiff was employed after 3 years.

13.3 Special Damages

The Plaintiff pleaded special damages i.e.:

(i) For medicine $50.00

(ii) Travelling expenses $19.90

$69.90

There were no receipts for the above payments, however, I consider this amount of $69.90 is a reasonable in the circumstances and award $69.90 as special damages.

I also award interest pursuant to Section 3 of the Law Reform (Miscellaneous Provisions) Death and Interest Act.

I detail the above awards as made, in totality as follows:

1. General damages = $20,000.00

Interest at the rate of 6% on the general damages from the date of issue of the Writ to the date of hearing. From 30 April 2008 to 10th December 2012 (1684 days):

6 x $20,000 = $1200 = $3.28 x 1684

100 365

= $ 5,523.00

Total $20,000.00 + $5,523.00 = $25,523.00

2. Loss of Earnings for 3 years = $18,240.00

3. Special Damages = $ 69.90

TOTAL DAMAGES AWARDED = $43,832.90

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13.4 Costs

I award summarily assessed cost of $2,000.00 to the Plaintiff.

14. Order of the Court

1. I enter judgment in favour of the Plaintiff in the sum of $43,832.90.

2. The Defendant is ordered to pay interest at the rate of 6% per annum on the said sum of $43,832.90 from the date of the judgment until the full payment.

3. The Defendants are ordered to pay $2000 cost summarily assessed.

Delivered at Suva this 6th day of August, 2014

C. KOTIGALAGE
JUDGE